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What's Past Is Past Only If Natives Let It

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Ever notice how some dominant society people tend to talk about the past, particularly when it comes to Indian history? “Well that was a long time ago,” some will dismissively say. “You can’t turn back the clock,” is another typical phrase. And then there is this gem: “What’s past is past.”

So let’s take a "past" document from the 15th century issued by Pope Alexander VI. People, even Vatican officials, say, “Well, that was long ago, what’s that got to with today?” But let’s think about that question for a moment.

One such papal document is a velum (lambskin) parchment with the Latin words carefully handwritten in golden brown ink. The words look as if they written yesterday. They express certain ideas such as the pope’s call for “barbarous” meaning “non-Christian” nations,” to be “reduced,” or “subued” (“deprimantur”). They call for the “propagation of the Christian empire” (“imperii christiani”), and for “the Catholic faith and Christian religion” to be “everywhere increased and spread.” And the pope purported to concede to the monarchs of Castile and Aragon full dominion, in perpetuity, over lands, “discovered and to be discovered,” lands that were “not already possessed by any Christian sovereign or prince.” (See Luis Rivera-Pagán, A Violent Evangelism: The Political and Religious Conquest of the Americas, 1992, pp. 29-30.)

The ideas expressed in that and other such Vatican documents were then circulated throughout the world, and used as the basis for the establishment of political and legal systems that are still existing today. The pope’s ideas from “the past,” such as the papal concession of Christian dominion, were still being used “in the present” in later generations, and were still being implemented at the time that those political and legal systems were founded in lands distant from Western Christendom. And the ideas from the papal bulls continued to be reaffirmed by the Spanish monarchy in later centuries.

So at the time those political and legal systems were being established, were the ideas from the Holy See documents “all in the past,” or were they still existing in “the present”? Or were they simultaneously past and present? As theologian Luis Rivera points out in his fabulous book A Violent Evangelism (1992), “In the juridical area, the Alexandrian bulls maintained their authorized character, as shown by the first sentence in the first law of the first chapter of the third book of the 'Compilation of the Leyes de Indias' (1680), which recognizes them [those documents] as the first foundation for the possession in perpetuity of the Americas by the Crown of Castilla.” (p. 32)

Recently, the Holy See has officially said at the United Nations that the papal bull of 1493 was abrogated by a papal bull from 1537 (Sublimis Deus). How odd, then, for the Crown of Castilla to use an "abrogated" papal bull as foundational for its Compilation of the Leyes de Indias in 1680, 153 years after the issuance of the bull Sublimis Deus. Perhaps the Holy See doesn’t know the political significance of the pope having conceded, in perpetuity, political domination to the Spanish crown. Or perhaps the Holy See does know and is pretending it doesn’t. Let’s see what the Crown of Castilla had to say on this point toward the end of the seventeenth century:

By donation from the Apostolic See. . . we are Lord of the Western Indies, isles and mainlands of the Ocean Sea, discovered and to be discovered and incorporated in our Royal Crown of Castilla . . . [so that] they [those isles and mainlands] may always remain united for their greater perpetuity and firmness, we forbid their being taken away. And we order that at no time may they be separated from our Royal Crown of Castilla. . . . And we give our faith and royal word, the Kings our successors, so that they [the isles and mainlands] can never be taken away or separted, in all or in part, for any reason or cause whatsoever. (Rivera, p. 32)

Whenever and wherever Spain, by treaty, conceded Spanish claimed territory to the United States, the U.S. thereby became the political successor to the prior claim of dominion conceded by Pope Alexander VI to the Crown of Castile. This is why the claim of Christian political dominion, in perpetuity, underlies the U.S. system in the geographical areas of Florida, the Louisiana Purchase, the Treaty of Guadalupe Hidalgo, the Gadsden Purchase, and in places such as Puerto Rico, Guam, and so forth. (See E. N. Van Kleffens, Hispanic Law until the end of the Middle Ages, With a note on the continued validity after the fifteenth century of medieval Hispanic legislation, in Spain, the Americas, Asia, and Africa, Edinburgh, 1968, pp. 266-78).

This is why in 1906, the 59th Congress of the United States authorized the publication of a book on fundamental and organic laws of the United States that was published in 1909. (59th Congress, 2nd Session, House of Representatives, Document No. 357 “The Federal and State Constitutions Colonial Charters, and Other Organic Laws of the States, Territories, and Colonies Now or Heretofore Forming The United States of America, Compiled and Edited under the Act of Congress of June 30, 1906, Francis Newton Thorpe, Ph.D., LL. D., Vol. I.” It was published in Washington, D.C. by the Government Printing Office.)

The Table of Contents begins with the predictable list of ‘organic documents’ (The Declaration of Independence, 1776, The Articles of Confederation, 1777, The Constitution of the United States, 1787, and Amendments to the Constitution, 1787). However, we then come to Commissions, charters, and plans of Union: Privileges and prerogatives granted to Christopher Columbus, 1492, Bull of Pope Alexander, 1493, Letters patent to John Cabot, 1496, Letters patent to Sir Humphrey Gylbert, 1578, and other such documents.

The point being that the Congress of the United States has officially acknowledged what E.N. Kleffens has acknowledged in his book Hispanic Laws. Pope Alexander VI’s papal bull of 1493, with its call to dominate (deprimantur) all non-Christian nations, has been incorporated into the organic and fundamental law framework of the United States. So, here’s a question: Are the “fundamental and organic laws” of the United States existing only in the past, or do those laws exist in the present (with their underlying Christian theology as against “heathens and infidels”), and will they continue to exist in the future until overturned and disestablished?

Steven Newcomb (Shawnee-Lenape) is co-founder and co-director of the Indigenous Law Institute, and author of Pagans in the Promised Land: Decoding the Doctrine of Christian Discovery (Fulcrum, 2008).

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